Krile v. Lawyer, 2022 ND 28

Background:

Assistant Burleigh County State’s Attorney Julie Lawyer reviewed Bismarck police files after an anonymous tip and concluded Sgt. Robyn Krile had made false statements; on March 22, 2017 Lawyer sent a Giglio letter to Bismarck Police Chief Donlin saying Krile could not be used as a witness.
The Bismarck Police Department terminated Krile; Lawyer also submitted affidavits to the Department of Labor during Krile’s discrimination complaint and disclosed the Giglio letter to Lincoln Police Chief Gibbs when Gibbs considered hiring Krile.
Krile sued Lawyer (official and individual capacities) for defamation based on publications to Chief Donlin, the Department of Labor, the POST Board, Chief Gibbs, and prospective employers.
The district court dismissed under N.D.R.Civ.P. 12(b)(6); this Court earlier affirmed dismissal as to the Department of Labor communications (absolute privilege), reversed as to Donlin and POST (remanded to consider qualified privilege), and instructed consideration of the Gibbs disclosure.
On remand the district court excluded many extraneous filings, treated the motion as a 12(b)(6) dismissal, and dismissed the remaining defamation claims as barred by absolute or qualified privilege and for failure to plead actual malice; the Supreme Court here affirms.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court should have treated Lawyer’s Rule 12(b)(6) motion as a Rule 56 summary-judgment motion because parties submitted materials outside the pleadings	Krile: court erred by excluding submitted materials and should have converted the motion to summary judgment	Lawyer: court properly excluded materials not embraced by the pleadings or public record and need not convert the motion	Court: no abuse of discretion; excluding extraneous filings and proceeding under 12(b)(6) was proper
Whether disclosure of Giglio letter to Chief Donlin is actionable (privilege and malice)	Krile: Donlin disclosure was not protected or the privilege was abused because Lawyer acted maliciously and recklessly	Lawyer: communication was qualifiedly privileged under N.D.C.C. § 14-02-05(3); malice not pled adequately	Court: communication qualifiedly privileged; Krile’s malice allegations were conclusory and insufficient, so dismissal affirmed
Whether disclosure to Chief Gibbs (prospective employer) supports defamation	Krile: Gibbs disclosure caused hiring harm and privilege was abused	Lawyer: same qualified privilege applies; no factual malice pled	Court: qualified privilege applies; pleadings lacked factual allegations of actual malice; claim dismissed
Pleading standard for malice under Rules 8 and 9	Krile: she alleged malice generally and offered affidavits/expert evidence (submitted below)	Lawyer: conclusory allegations fail Rule 8; Rule 9(b) permits general pleading of malice but does not excuse factual pleading requirements	Court: Rule 9 allows general allegation of malice but Rule 8 still requires factual support; plaintiff’s allegations were conclusory and insufficient

Key Cases Cited

Krile v. Lawyer, 947 N.W.2d 366 (N.D. 2020) (prior appeal addressing absolute vs qualified privilege and remand)
Brady v. Maryland, 373 U.S. 83 (Brady requires disclosure of exculpatory/impeachment material)
Giglio v. United States, 405 U.S. 150 (impeachment evidence duty for prosecutors)
New York Times Co. v. Sullivan, 376 U.S. 254 (constitutional actual-malice standard for public-figure defamation)
Ashcroft v. Iqbal, 556 U.S. 662 (conclusory allegations insufficient under Rule 8)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading standard requiring more than labels and conclusions)
Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (distinguishing conceptions of actual malice)
Richmond v. Nodland, 552 N.W.2d 586 (N.D. 1996) (no liability for privileged defamatory statements)
Khokha v. Shahin, 767 N.W.2d 159 (N.D. 2009) (two-step qualified privilege analysis: privilege then abuse)